After years of delay, Secretary of the Interior Dirk Kempthorne made a landmark decision on whether global warming pollution is regulated by the Endangered Species Act (ESA). Kempthorne ruled that the polar bear should be classified as a “threatened species” due to the decline of polar sea ice, critical to its survival. Kempthorne stated:
They are likely to become endangered in the near future.
The Department of Interior, under Secretary Dirk Kempthorne, fought for several years in the courts since 2005 to avoid making a decision on whether the precipitous decline in Arctic sea ice due to global warming is making the polar bear an endangered species. Fish and Wildlife Service director Dale Hall testified in January that there was no significant scientific uncertainty in the endangerment posed by global warming to polar bears — the only legal justification under the Endangered Species Act for a delay.
Kempthone’s decision to follow the science is in marked contrast to Environmental Protection Agency Administrator Stephen Johnson’s action to override his staff in refusing to regulate tailpipe greenhouse gas emissions.
However, Kempthorne also argued vigorously that his decison does not compel the Bush administration to construct a plan to regulate greenhouse gas emissions, repeating President Bush’s entirely spurious claim that would be a “wholly inappropriate use” of the Endangered Species Act. The Interior news release announces, “Rule will allow continuation of vital energy production in Alaska.” In justifying his declaration that the ESA places no new restrictions on Arctic drilling, Kempthorne claimed that the Marine Mammal Protection Act (MMPA) is “more stringent” than the ESA. However, the court ruling that compelled him to issue today’s rule states that “the protections afforded under the ESA far surpass those provided by the MMPA.”
Despite his protestations, Kempthorne’s decision clearly calls into question the legality of the sale of oil and gas drilling rights in polar bear habitat on February 6, while the polar bear decision was being illegally delayed.
Kempthorne whined that the Endangered Species Act is “one of the most inflexible” pieces of legislation because it didn’t allow him to consider whether protecting species like the polar bear from extinction would cost too much.
The most painful irony of the situation is that the melting of the ice that is pointing the polar bear to extinction is also making the Arctic more accessible to drilling. Like lemmings off a cliff, the oil industry and its right-wing allies are rushing to extract these fossil fuels and further increase global warming emissions. The fate of the polar bear should be of concern for those who believe in our moral responsibility to be good stewards of this planet. But of equal consideration is their role as the canaries in the climatic coal mine. The consequences of an unfrozen Arctic would be utterly catastrophic — not just to Arctic species, but also to humanity.
To make sure the ESA is not misused to regulate global climate change, Kempthorne promised the following actions:
- The U.S. Fish and Wildlife Service is proposing a 4(d) rule that states that if an activity is permissible under the stricter standards of the Marine Mammal Protection Act, it is also permissible under the ESA with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.
- Director Hall will issue guidance to staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project or government action.
- The Department will issue a Solicitor’s Opinion further clarifying these points.
- The Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability.
In short, the Bush administration is announcing that even though the Endangered Species Act forced them to admit global warming is threatening species with extinction, it is going to attempt to rewrite the Endangered Species Act to ignore global warming in the future.
UPDATE II: Andy Revkin at Dot Earth concludes, “So this leaves everything as it was, in a way, with the bears facing a transforming ecosystem and environmentalists successful in their litigation, but not necessarily empowered by the listing.” At Climate Progress Joe Romm calls the decision “bye-polar disorder.”
UPDATE IV: Via Warming Law, Lisa Heinzerling at the Georgetown Law Faculty Blog explains why the Endangered Species Act is known as the “pit bull” on environmental laws, and that the Department of Interior “rule turns the pit bull into a poodle” and contrasts it with the Environmental Protection Agency’s interpretation of the Clean Air Act:
At the same moment the Department of the Interior is turning interpretive somersaults to avoid regulating greenhouse gas emitters through the Endangered Species Act, EPA is clinging to an unnecessarily literal interpretation of the Clean Air Act to justify its own failure to regulate. These two agencies have thus found different paths to the same end: complete inaction on the defining environmental issue of our time.